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When
a proactive approach can head off malpractice lawsuits
JUDGING from the sentiment at the 7th ESCRS Winter Refractive Meeting,
many ophthalmologists appear resigned to the prospect of appearing
in a courtroom to defend their treatment.
Increasing numbers of ophthalmologists are coming to realise, however,
that they possess the power to reduce the risk of being sued and
of ever appearing in court.
Exercising that power begins with understanding why patients sue.
A recent landmark study has found that a surgeon’s attitude
may play a part in indicating whether a patient sues for malpractice
(Surgery 2002;132:5-9). The study represents the first of its kind
to indicate that the manner in which something is said to a patient
may be as important as what is said in determining the risk of a
malpractice lawsuit.
In the study, US researchers examined consultations between surgeons
and their patients. Half of the surgeons had been sued for malpractice
at least once. The other half had never been sued.
After deleting identifying information from the consultations, the
researchers picked out four 10-second sound bites from each consultation
between the surgeon and two different patients. The researchers
played the sound bites to a ‘jury’ of six lay men and
six lay women. The researchers then asked the jury to rate the surgeon’s
tone of voice according to whether the surgeon seemed:
•
Warm
• Anxious or Concerned
• Interested
• Hostile
• Sympathetic
• Professional
• Competent
• Dominant
• Satisfied
• Genuine
The
study found that those surgeons who received high marks for a dominant
tone and low marks for a concerned or anxious tone were 2.74 times
more likely to have already been sued. Those surgeons who scored
high marks for an anxious or concerned tone and low marks for a
dominant tone were only half as likely to have ever been sued.
Heading off lawsuits before they happen may seem an onerous task,
but another recent study may point the way. That study indicates
that dealing with patient complaints early may help reduce the risk
of those patients taking their complaints to court. (Journal of
the American Medical Association 2002;287:2951-2957)
In the study, researchers looked at 18,851 unsolicited patient complaints
at a major academic hospital in the US.
In designing the study, the researchers said they hoped to alert
physicians to a number of non-clinical factors that may influence
patients to complain and sue.
“Risk appears related to patients’ dissatisfaction with
their physicians’ ability to establish rapport, provide access,
administer care and treatment consistent with expectations and communicate
effectively,” the researchers explained.
During the six-year duration of the study, 406 of the hospital’s
645 physicians received at least one complaint. In all, patients
identified at least one physician’s name in 5,108 complaints;
of those 5,108 complaints, 56% identified a surgeon, including a
number of ophthalmologists.
When the researchers looked more closely at who was sued they found
that 9% of the hospital physicians accounted for more than half
of all patient complaints. What was even more startling was that
5% of the hospital’s physicians accounted for almost one-third
of all patient complaints.
The researchers also found that physicians with more complaints
against them were more likely to be sued by such unhappy patients.
“The identification of an association between complaint data
and risk management activity offers an excellent opportunity for
addressing sources of patient dissatisfaction that can lead inappropriately
toward the courtroom,” the researchers concluded.
Such findings aren’t exclusively American, either. For years,
European physicians have known that non-clinical factors are sometimes
as important as the clinical ones in determining whether a patient
sues for negligence.
About a decade ago, British psychiatrists undertook a landmark study
to understand why patients sue. The results ring true as loudly
as they did when they appeared in the The Lancet in June of 1994
(343:1609-1613)
The psychiatrists reviewed responses to questionnaires from 227
patients and relatives who had hired lawyers to sue for medical
malpractice. Of the lawsuits, 42 arose over injury during surgery;
70 arose over failures to diagnose; 42 arose because of over incorrect
treatment; 33 arose over injury at birth and 10 arose over adverse
drug reactions.
When patients were asked to describe their immediate reactions to
the incident:
•
90% said they were angry
• 80% said they were bitter
• 55% felt betrayed
• 40% felt humiliated
When
patients and their relatives were asked about whether they had ever
received an explanation for what happened to them or their family
member, more than a third of them said they never received any explanation.
Of the patients and relatives who did receive an explanation, a
majority were dissatisfied with the explanation. The study found
that:
•
11.3% thought they received enough information
• 24.3% thought the information they received was clear
• 20.2% thought the information was accurate
• 39.3 thought the information as given sympathetically
The
study also found that a physician accepted responsibility for the
incident in only 13% of cases and that the patient or relative received
an apology in only 15% of cases.
Patients were then asked to review a list of reasons why they sued
and to indicate whether they agreed with the reason. The most common
reason, with which 91.4 % of respondents agreed, was that they sued
“so that it would not happen to anyone else”.
Other
common reasons included:
•
I wanted an explanation: 90.7%
• I wanted the doctors to realise what they had done: 90.4%
• To get an admission of negligence: 86.7%
• So that the doctor would know how I felt: 68.4%
• My feelings were ignored: 66.8%
• I wanted financial compensation: 65.6%
• Because I was angry: 65.4%
• So that the doctor did not get away with it: 54.7%
• So that the doctor would be disciplined: 47.6%
• Because it was the only way I could cope with my feelings:
45.8%
• Because of the attitude of the staff afterwards: 42.5%
• To get back at the doctor involved: 23.2%
From
the findings, the British psychiatrists concluded that patients
take their physicians to court for more than just money. Four main
themes emerged from the analysis of reasons for litigation:
•
Standards of care: Both patients and relatives wanted to prevent
similar incidents in the future
• Explanation: To know how it happened and why;
• Compensation: For financial losses, pain and suffering or
to provide care in the future for an injured person
• Accountability: Consideration that an individual or organisation
should be held responsible.
Most
European legal systems, however, are ill-equipped to tackle all
four areas. As a result, physicians — including ophthalmologists
must change more than their country’s legal systems to deter
patients from suing. They must change the way they communicate with
patients and the way in which they react to errors and complaints.
With such changes, ophthalmologists may be able to take more control
of their malpractice risk. In such a way, ophthalmologists can satisfy
many disappointed patients — even those with poor outcomes
— and help reduce the risk that they will end up in court
defending a malpractice lawsuit.
| Honesty
is best to reduce malpractice lawsuits
Strangely
enough, admitting mistakes right from the start may help reduce
the risk — and cost — of being sued for malpractice,
according to the US Department of Veteran Affairs.
The Department, which runs hospitals for the country’s
military veterans, has recently introduced a policy of admitting
medical errors as soon as they happen. Under the policy, the
hospital informs patients and their families of any negligence
or accidents as soon as they learn of them and to “assure
them that medical measures have been implemented and that
additional steps are being taken to minimise disability, death,
inconvenience or financial loss to the patient or family”.
As part of the disclosure process, hospital officials, including
the hospital’s chief of staff, meet with the patient
and family members as soon as possible after the incident.
At that meeting, the hospital officials provide an explanation
of the accident or error and, when possible, identify those
hospital staff members responsible. As part of the meeting,
the hospital officials apologise for any mistake and promise
to undertake whatever means are necessary to prevent the error
recurring.
Also as part of the process, the hospital will help the patient
and family members complete whatever compensation forms may
be required. The hospital will even recommend that patients
and their family members talk to their own lawyers about any
compensation offers and meet with such lawyers to work out
a compensation package based on a reasonable calculation of
the patient’s injury and loss.
During the seven years that one veterans’ hospital monitored
the full disclosure programmes, it recorded 88 malpractice
claims (Annals of Internal Medicine 1999;131:963-967). Those
claims included five settlements in which the hospital made
payments for serious injury or death in circumstances where
the patient or family would never have known of the underlying
negligence.
The hospital paid out an average of $15,622 to settle the
claims. Only eight claims reached court. Of those, the hospital
won before trial. The one case that made it to trial was won
by the hospital.
In addition to saving money on payouts to patients, the hospital
estimated that it saved $250,000 in legal costs for every
case that did not reach court.
“An honest and forthright risk management policy that
puts the patient’s interests first may be relatively
inexpensive because it allows avoidance of lawsuit preparation,
litigation, court judgments and settlements at trail.
“Although goodwill and the maintenance of the care-giver
role are less tangible benefits, they are also important advantages
of such a policy,” the researchers concluded.
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If you have any suggestions for future Regulatory Matters columns,
please contact Paul McGinn at +353 1 628 9747 or email paulrmcginn@eircom.net.
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